Summary
In Miller, this Court held that the defendant contractor could not be held liable to plaintiff for injuries sustained as a result of an alleged defect in the roadway where its contract with the utility called for the contractor to leave the trench an inch and a half below grade and the utility failed to raise an issue of fact whether the contractor performed its contractual obligations negligently and created an unreasonable risk of harm to plaintiff (100 A.D.3d at 561, 954 N.Y.S.2d 100).
Summary of this case from Farrugia v. 1440 Broadway Assocs.Opinion
2012-11-27
Jodi MILLER, Plaintiff, v. The CITY OF NEW YORK, et al., Defendants, Consolidated Edison Company of New York, Inc., Defendant–Appellant, Safeway Construction Enterprises, Inc., Defendant–Respondent. Consolidated Edison Company of New York, Inc., Third–Party Plaintiff–Appellant, v. Safeway Construction Enterprises, Inc., Third–Party Defendant–Respondent, Nico Asphalt, Inc., Third–Party Defendant.
Office of Richard W. Babinecz, New York (Stephen T. Brewi of counsel), for appellant. Rafter and Associates PLLC, New York (Patrick B. McKeown of counsel), for respondent.
Office of Richard W. Babinecz, New York (Stephen T. Brewi of counsel), for appellant. Rafter and Associates PLLC, New York (Patrick B. McKeown of counsel), for respondent.
TOM, J.P., SAXE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 7, 2011, which, to the extent appealed from, granted third-party defendant Safeway Construction Enterprises, Inc.'s motion for summary judgment dismissing the complaint and the third-party complaint as against it, unanimously affirmed, without costs.
Pursuant to a contract with Con. Ed., Safeway performed excavation, conduit installation, and backfilling at an intersection where, a few days later, plaintiff allegedly was injured when the front wheel of her scooter fell into a trench in the roadway. The contract called for Safeway to leave the trench an inch and a half below grade; the Con. Ed. construction representative who oversaw Safeway's work testified that Safeway restored the trench to a depth of an inch and a half below grade. In opposition to this prima facie showing that Safeway did precisely what it was obligated to do under the contract, Con. Ed. failed to raise an issue of fact whether Safeway performed its contractual obligations negligently and created an unreasonable risk of harm to plaintiff, for whose injuries it could be held liable ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002];Agosto v. 30th Place Holding, LLC, 73 A.D.3d 492, 493, 901 N.Y.S.2d 593 [1st Dept.2010] ). We reject Con. Ed.'s contention that Safeway owed plaintiff a duty pursuant to general negligence principles ( see Espinal, 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485).
Contrary to Con. Ed.'s contention, no issue of fact exists whether Safeway breached its contractual duty to “protect and maintain” the 1 1/2-inch-deep trench for five days after completing its work by failing to place cones or barricades in the vicinity. Pursuant to article 7.6 of Con. Ed.'s “Trenching Manual,” Safeway was “responsible for maintaining excavations and plates for a period of 5 working days from the date excavations are available for use by others.” However, as defined in article 21 of Con. Ed.'s “Standard Terms and Conditions of Construction Contracts,” “maintenance” means keeping the work site “neat, orderly and workmanlike” so as not to interfere with the progress of work performed there; the definition does not refer to the safety of the general public.